Whether documents can be directly produced at the stage of cross-examination of a party and/or a witness to confront him/her without seeking any prior leave of the Court under Order VII Rule 14 (4), Order VIII Rules 1 (A) (4) (a) and Order XIII Rule 1 (3) (a) of the Civil Procedure Code ?
In fact having answered question no.1, in the negative, that a party cannot be equated with a ‘witness’, the answer to question no.2, naturally follows that a plain reading of the language of Order VII Rule 14 sub-rule 4 and Order VIII Rule 1-A sub-rule (4) of C.P.C. and specifically the use of the words ‘defendants witness’ and the ‘plaintiffs witness’, would mean not the defendant(s) or the plaintiff(s) but only the witnesses who enter the witnesses box, in support of the case set up by either party to the suit and not otherwise. Therefore no leave of the Court would be required to confront the witness with a document during his cross-examination, as the element of surprise, would be lost, if any such permission was required to be obtained.
In Subash Chander / Shri Bhagwan Yadav 2009 SCC OnLine Del 3818 the Court was considering an issue as to what wp7717 of 2019.odt would be the fate of the documents produced for the first time during the cross-examination of a witness and which is denied by the witness, during which it was held as under :-
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“11. The legislative intent behind order 7 Rule 14(4) and Order 8 Rule 1A(4) and Order 13 Rule 1(3) appears to be to permit an element of surprise, which is very important in the cross examination of witnesses. A litigant may well be of the opinion that if the document on the basis whereof he seeks to demolish the case of the adversary is filed on the court record along with pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the adversary or witness, may blurt out the truth.”
(emphasis supplied) This in fact suports the view which we have indicated above.
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(v) Ramdev Food Products (supra) relied upon by learned Counsel Mr. Shareef, also supports the view which we have taken. The issue for consideration therein was regarding the production of a document at the stage of cross-examination of the witness for the defendant for which an application made came to be rejected by the Trial Court, which rejection was under challenge wp7717 of 2019.odt before the High Court. The High Court while considering the dictum in Surinder Kumar Bajaj / Sheela Rani (MANU/DE/3264/2009) and Subhash Chander / Shri Bhagwan Yadav (MANU/DE/3343/2009) both by the Delhi High Court, held as under :-
“19. —–. Therefore, in view of sub-rule (4) of rule 14 of Order VII of the Code, nothing in that rule shall apply to documents produced for the cross-examination of the defendant’s witness. Consequently, the provisions of sub- rule (3) of rule 14 would not apply if the document is produced for cross-examination of the defendant’s witness and it would not be necessary to obtain the leave of the court for production of such document. But in that case, such document has to be used only for the purpose of such cross-examination and need not be produced in advance nor is the leave of the court required to be obtained for using such document for the purpose of cross examination of the witness. If the element of surprise has to be maintained, such document has to be produced at the time of cross examination and not before, otherwise the very purpose of introducing the surprise element is lost.
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20. —-. Since the plaintiff has sought the leave of the court to produce the documents in question, it can be safely presumed that the application has been made under sub-rule (3) of rule 14 of Order VII of the Code. In the opinion of this court, had it been the intention of the plaintiff to put such documents to the defendant in his cross-examination, as is sought to be contended by the wp7717 of 2019.odt learned counsel for the petitioner, there was no requirement for filing such application and the documents would simpliciter have been put to the defendant during the course of his crossexamination by resorting to the provisions of sub-rule (4) of rule 14 of Order VII.
21. —–. However, as noticed hereinabove, it has been contended on behalf of the petitioner that such documents were sought to be produced under sub-rule (4) of rule 14 of Order VII of the Code which says that nothing in the rule shall apply to document produced for the cross examination of the plaintiff’s witness. A similar provision is found in sub-rule (4) of rule 1A of Order VIII as well as in sub-rule (3) of rule 1 of Order XIII of the Code. Therefore, resort cannot be had either to sub-rule (1) or sub-rule (3) of rule 14 of Order VII of the Code for production of documents for the purpose of cross examination of the defendant’s witness. However, as noted hereinabove, insofar as the production of documents for cross- examination of witness is concerned, the leave of the trial court is not required to be obtained nor is any application required to be made as contemplated under subrule (3) of rule 14 of Order VII of the Code.
25. In the opinion of this court, if the petitioner seeks to bring the documents on record to maintain the element of surprise, the documents have to be put to the witness to confront him at the time of cross-examination and are not required to be produced by making an application for production of the same. Therefore, the application made by the petitioner cannot be treated as one under sub-rule wp7717 of 2019.odt (4) of rule 14 of Order VII of the Code.However, since it has been contended on behalf of the petitioner that the documents are sought to be produced on record under sub- rule (4) of rule 14 of Order VII of the Code, while upholding the order passed by the trial court, with a view to balance equities, it is clarified that it would be permissible for the petitioner to produce such documents for the purpose of confronting the witness at the time of cross examination of such witness for which purpose it would not be necessary to obtain leave of the court.”
Ref: Mohammed Abdul Wahid v. Nilofer d/o Dr.Mohammad Abdul Salim, reported in 2021 (3) Mh.L.J. 626,
Section 62 in The Indian Evidence Act, 1872
62. Primary evidenceโPrimary evidence means the document itself produced for the inspection of the Court. Explanation 1.โWhere a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2.โWhere a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
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To appreciate the merits , we may consider marking of documents during cross examination by showing the documents to the witness. The documents in the possession of the cross-examiner may either be admissible in itself or inadmissible. In a givenย case, the Document/ Photograph is an admissible document. Though the document is admissible, can the document be admitted in evidence through the Plaintiff who had neither taken the photograph nor at whose instance the document was marked. Undoubtedly, the document being shown to the witness, when the witness asserts or admits the same, the document could be marked through that witness. But the “photograph” cannot be equated to such categories of documents which could be marked through cross-examination of witness.
Whether a photograph is a correct reproduction of the original, whether it correctly depicts the picture of the location depends on many factors viz., correctness of lens, state of weather and time taken, photographic skill adopted by the photographer, accuracy of the angle, availability of light and such other factors. The proof of identity of the site, location, objects and persons in the photograph photograph could be admitted in evidence only by examining the photographer.
Frequently, objections are being raised about the accuracy of the photographs on the ground of correctness of lens, light, focussing, skill of the photographer and such other aspects. The photograph is not something which contains some admissible contents to be marked through witnesses during cross-examination – say, for instance like containing the signature or writing of the witness who is in the box wherein he could assert or admit its contents. The witness who is cross examined can neither assert nor deny the contents or accuracy of the photograph. While so, the cross-examiner cannot insist for marking the photograph during the cross-examination of either the opponent or his witnesses.
If the photograph in the hands of the cross-examiner is marked during cross-examination, how could the party who called the witness could cross-examine the witness as to the accuracy of the photograph. Hence though the photograph is admissible, it cannot be marked during the cross examination of the opponent or his witnesses. It is always desirable to produce the photographs by examining the person who took the photographs or by the party who is relying on the photographs or at whose instance the photographs were taken. It cannot be marked during cross-examination of the opponent or his witnesses.
ย Generally, photographs are admissible (sec 62 of Evidence Act) only if the photograph has been properly verified on oath by a person able to speak to its accuracy. Photographs should not be admitted in evidence without examining the person who took the photographs and the negatives of the same being produced on record or at whose instance the photographs were taken.
Though the Plaintiff could admit that the document is a photograph, the same cannot be marked through him since he has not taken the photograph.
